Journals Talkhttp://sites.thomsonreuters.com.au/journals
The latest on the most extensive range of legal journals in the Australian market, along with articles, news, submission requirements and more.Tue, 15 Aug 2017 06:58:35 +0000en-UShourly1https://wordpress.org/?v=4.6.6Criminal Law Journal update: Vol 41 Pt 3http://sites.thomsonreuters.com.au/journals/2017/08/11/criminal-law-journal-update-vol-41-pt-3/
Fri, 11 Aug 2017 05:26:07 +0000http://sites.thomsonreuters.com.au/journals/?p=10226*Please note that the links to the content in this Part will direct you to Westlaw AU.

Articles

As media content continues to proliferate, pre-trial publicity’s potential to negatively impact jury impartiality and decrease the certainty of a fair trial is an ever-increasing concern. In 1995, Queensland became the first Australian State or Territory to implement pre-trial questioning as a measure to address such publicity. In 2014, the Victorian Law Reform Commission (VLRC) determined that Victoria did not require such questioning. This article extends the VLRC’s analysis to suggest that the Queensland – as opposed to United States – version of pre-trial questioning can, in fact, have an important role in addressing the challenge that prejudicial pre-trial publicity poses to courts. The article reviews the reasons for which the VLRC rejected the measure to conclude that, to address prejudicial pre-trial publicity in trials with much contemporary media coverage, Queensland’s pre-trial questioning has a particular effectiveness that the measures which Victoria currently uses do not have.

Autism spectrum disorder (ASD) is associated with deficits in social cognition and empathy. In the criminal context, this poses difficult challenges, undermining assumptions about a defendant’s culpability and character and forcing recognition of the impact of social and emotional impairments on decision-making. Drawing on relevant court decisions, this article examines the sentencing response to defendants with ASD. It argues that the condition is raising unique challenges for sentencing judges as ASD’s distinct symptomology is difficult to fit within conventional exculpatory doctrines. It urges awareness of the distinct forensic aspects of ASD, so that courts can appreciate the subtle and often counterintuitive elements of this condition and their relevance to the sentencing process.

]]>Journal of Judicial Administration update: Vol 26 Pt 3http://sites.thomsonreuters.com.au/journals/2017/08/08/journal-of-judicial-administration-update-vol-26-pt-3/
Tue, 08 Aug 2017 10:04:24 +0000http://sites.thomsonreuters.com.au/journals/?p=10228*Please note that the links to the content in this Part will direct you to Westlaw AU.

Articles

There is a growing pool of research on court outcomes in sentencing Indigenous people but relatively little research on the information available to sentencing courts to consider Indigenous background. Although Australian courts mostly have discretion to consider Indigenous circumstances, such consideration depends on submissions and reports tendered in court. The High Court in Bugmy v The Queen (2013) stated “it is necessary to point to material tending to establish [the defendant’s deprived] background” if it is to be relevant in sentencing. The main repository of court information on defendant background is counsel submissions and, where the defendant is facing imprisonment, Community Corrections’ Presentence Reports. Based on 18 interviews with judicial officers, lawyers and court staff in New South Wales and Victoria, this article identifies the need for more information on relevant Indigenous background factors in sentencing. The introduction of discrete Indigenous community reports that present Indigenous perspectives on the person’s background and rehabilitation was regarded as important for addressing the Bugmy requirement. This article makes reference to the wide-scale experience in Canada of First Nations presentence reports, known as “Gladue Reports”, and the more small-scale Australian experiences of Indigenous cultural reports, to indicate how this material can enhance individualised justice in sentencing Indigenous peoples.

It is important that the public has confidence in the judiciary so that it will abide by its decisions. However, there are many ways to undermine the public confidence in the judiciary. A relatively new method of undermining the public confidence in the judiciary can occur when the public writes highly critical or malicious comments about the judiciary on social media. Such comments can spread on social media instantaneously to a huge number of people – this makes it unique in comparison to some of the other methods of undermining confidence in the judiciary. This article examines how the government and business deal with critical or malicious comments on social media and applies this to the judiciary. It argues that it is important that the judiciary take preventive action in this area so that they are in the best position to deal with critical or malicious comments on social media when they are posted.

In all Australian jurisdictions, many serious offences can be tried summarily, and in most jurisdictions, an indictable offence can be tried by a judge without a jury. In Alqudsi v The Queen, the High Court majority held that trial by judge for an offence against Commonwealth counterterrorist legislation would be inconsistent with s 80 of the Constitution. This article examines the reasoning of the decision and compares the different State provisions which currently enable serious offences including murder and sexual offences to be tried by a judge only. Given the pervasive effect of news streaming, the internet and social media, it is argued that there are compelling public policy issues which commend an accused being able to elect to waive his or her right to trial by jury and instead be tried by a judge who is more likely to be immune to the effects of pre-trial publicity and whose reasoning can be subject to critical analysis.

Lawyer mediators who are accredited under Australia’s National Mediator Accreditation System (NMAS) are obliged to comply with the rules of conduct of the legal profession and other components of the “law of lawyering”, as well as with the Practice Standards issued in connection with the NMAS. This article amalgamates the two regulatory systems to which lawyer mediators are subject to identify and analyse the ethical duties owed by lawyer mediators. In addition, it aims to suggest ways in which to improve the NMAS Practice Standards, which have become, arguably, the single most important regulatory instrument for mediators in Australia.

]]>The Queensland Lawyer update: Vol 37 Pt 1http://sites.thomsonreuters.com.au/journals/2017/08/04/the-queensland-lawyer-update-vol-37-pt-1/
Fri, 04 Aug 2017 09:38:36 +0000http://sites.thomsonreuters.com.au/journals/?p=10185*Please note that the links to the content in this Part will direct you to Westlaw AU.

Articles

The public road is the most basic form of public infrastructure. While it can, in one instance, be easily recognised when it is subject to a formed carriageway, in another instance a road may present as a crude track disappearing aimlessly off into the distance. Or it may not even appear to exist to the eye at all. In each case, its legal status essentially is the same, that status being what distinguishes a public road or, as the common law prefers, a highway, from other ways or private roads: it is a thoroughfare over which the public may pass and repass without interference. At common law, public acceptance of a landowner’s offer to dedicate a highway forever meant that the public had its right of passage, but, also that the public henceforth accepted responsibility for the highway’s maintenance – “once a highway, always a highway” is the adage of the common law. Today, while the common law still plays its part, the dedication of land as a road, the road’s use, including for the operation of public utility infrastructure, and a road’s control and maintenance by a road authority, all are matters largely of statute. This has created complexity and some uncertainty around the meaning of “road”. Part 1 of this three-part article explores the legal nature and creation of a public road in Queensland. Part 2 will consider ownership and control of a road, and the granting of private rights in a road. And finally, Part 3 will look at the public’s right to use a road, the notion of the “road in fact”, and closing a road. While the article does not pretend to be an exhaustive treatment of roads in Queensland, it does, in part, try to articulate how the modern road is at risk of losing the internal consistency and policy that the common law of “highway” gave to the law in this area.

]]>Company and Securities Law Journal update: Vol 35 Pt 4http://sites.thomsonreuters.com.au/journals/2017/08/03/company-and-securities-law-journal-update-vol-35-pt-4/
Thu, 03 Aug 2017 08:07:50 +0000http://sites.thomsonreuters.com.au/journals/?p=10208*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are using Checkpoint, the links can be found in the Checkpoint PDF at the bottom of this post.

Articles

On three occasions in the last 10 years, the appellate courts in New Zealand have considered the legitimacy of litigation funding arrangements. The first involved a representative action. The second was a private commercial dispute. The third, heard in the Court of Appeal in June 2016, involved a liquidator that was funded by a third-party litigation funder to bring an action against the debtor company’s auditors. The attitude of the New Zealand courts displayed in these cases is that litigation funding is not in and of itself objectionable. In relation to actions brought by liquidators, only if there is an “abuse of process” will the court intervene. One ground of “abuse of process” is where the arrangements involve the assignment of a bare cause of action in circumstances where that is not permitted. No abuse of process was found in the recent Court of Appeal decision, suggesting a high degree of judicial tolerance for liquidators’ litigation funding arrangements.

Running a business has its risks, especially as many fail in their early years of operation. The question as to which stakeholders associated with the business bear the loss is an important issue, which will largely depend on the business structure used. Accountants play a central role in the choice of business structure with their clients, with research demonstrating that liability issues are a central consideration. The Australian undergraduate accounting curriculum is heavily focused on sole proprietors, partnerships and companies, with scant coverage of trusts despite them being a popular business structure in Australia. This article goes back to first principles and examines whether there is justification for the differential coverage in the accounting curriculum on the liability issues concerning the various business structures. It will be argued that the liability issues with respect to trusts are just as important as that for the other popular business structure used to reduce liability exposure, being the company.

The Turnbull Government has promised comprehensive whistleblower reforms. To generate meaningful community consultation as part of the law reform process, people must have a comprehensive understanding of the deficiencies in Australia’s public and private sector whistleblowing regime. The legislator’s choice not to produce a consultation paper to accompany the current inquiry may limit the value of the submissions received, particularly as the terms of reference omit a number of important considerations that have been raised in earlier reviews, reports and papers. This article aims to fill this gap. This article also analyses the deficiencies in Australia’s whistleblowing regimes and it compares areas where Australia falls behind global norms as accentuated by the G20 “Breaking the Silence” report.

]]>Australian Law Journal update: Vol 91 Pt 7http://sites.thomsonreuters.com.au/journals/2017/08/02/australian-law-journal-update-vol-91-pt-7/
Wed, 02 Aug 2017 07:21:51 +0000http://sites.thomsonreuters.com.au/journals/?p=10194*Please note that the links to the content in this Part will direct you to Westlaw AU.

Articles

The adoption by the Privy Council and the High Court of “immediate indefeasibility” respecting the Torrens system also involved the qualification respecting in personam claims against the registered proprietor. This has given rise to extensive litigation which settles many questions but leaves others outstanding. This article addresses first that course of decisions in Australia and New Zealand and secondly the doctrinal basis upon which equity interacts in this way with the statutory regime of title by registration.

Advances in technology, in particular in artificial intelligence, will continue to have a significant impact on the discipline of law in academia, the practicing profession and the courts. While technological forecasting is a dangerous game, current trends suggest that over the next 10 years there will likely be greater reliance on data analytic tools in assessing students, predicting judicial outcomes and making decisions about criminal defendants both pre- and post-conviction. There is also likely to be greater diffusion of expert systems offering standardised legal advice and legal documents, although it is less likely that there will be significant technological innovation in that field. This article explores the limitations of artificial intelligence technologies by considering the ways in which what they produce (for clients, law students and society) differs from what they replace.

This article explains the effect that advances in technology are having upon the discipline of law in academia, the practising profession and the courts. It gives examples of the changes that are occurring and argues that advances in technology should be used to enhance the rule of law. It makes several proposals: that universities adopt a hybrid of online and in-person learning; that the raw materials of the law be made available online for free; that publishers transform journal articles into interconnected online resources; that firms take advantage new technologies and compete vigorously to drive down the cost of legal services; that lawyers be open minded and motivated about using new technologies; and that courts adopt electronic litigation platforms but resist receding into cyberspace.

]]>Insolvency Law Journal update: Vol 25 Pt 2http://sites.thomsonreuters.com.au/journals/2017/07/27/insolvency-law-journal-update-vol-25-pt-2/
Thu, 27 Jul 2017 09:06:13 +0000http://sites.thomsonreuters.com.au/journals/?p=10177*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are using Checkpoint, the links can be found in the Checkpoint PDF at the bottom of this post.

Articles

The law surrounding the insolvency of corporate trustees has been rife with uncertainty for more than 30 years. This is in large part because the Corporations Act 2001 (Cth) assumes that the corporation entering into insolvency is the beneficial owner of its assets. Usually, the primary asset of the insolvent corporate trustee is the trustee’s equitable lien and indemnity that traces into the trust assets. Accordingly, the nature of the asset complicates the liquidator’s statutory tasks. This article attempts to succinctly state the law in relation to those tasks and demonstrate that the cardinal principle of the law is that the insolvency must be conducted in accordance with the trust and its associated obligations. Further, it analyses the sources of power available to the liquidator to dispose of trust property and challenges the long-held assumption that the liquidator obtains the equitable lien and indemnity upon the entry of the corporate trustee into insolvency. The former is identified as a clear case for targeted law reform.

The issue of when a security should be valued for the purposes of the unfair preferences regime remains unresolved notwithstanding recent professional and judicial commentary. Commercial and practical consequences of this unsettled question of law have been exacerbated by conflicting judicial positions. This article seeks to identify the most appropriate position of the three competing possibilities – ie whether the security should be valued at: the date the security is granted; the date of the transaction sought to be avoided; or the date of the insolvent company’s liquidation. This article canvasses the history of the preference payment regime, and undertakes an exercise of statutory interpretation having regard to the relevant provision’s text, context, legislative history and purpose. It considers the countervailing arguments for and against each of the three possibilities, discusses the international position of comparative jurisdictions, and ultimately concludes that valuing the security at the date of liquidation is the appropriate view in the Australian legislative regime.

]]>Property Law Review update: Vol 6 Pt 3http://sites.thomsonreuters.com.au/journals/2017/07/19/property-law-review-update-vol-6-pt-3/
Wed, 19 Jul 2017 10:10:56 +0000http://sites.thomsonreuters.com.au/journals/?p=10146*Please note that the links to the content in this Part will direct you to Westlaw AU.

Articles

This article considers legislative innovations in Australian real property law and the role played by legislators through exercises of Parliamentary sovereignty. The legislative role is equal to that of the judiciary in the creation and modification of new forms of property in relation to land. To demonstrate this thesis, the article examines: (i) the “invention” of Crown perpetual and State leasehold interests, rights to occupy, and strata title; (ii) the decoupling of land ownership from riparian rights, and (iii) the ownership of mines and minerals. The true “Australianness” of Australian real property has been produced not only through judge-made law, but also, and equally importantly, through the legislature, which has altered every aspect of how the common law once viewed land as surface, airspace, and subsurface. It is for this reason that judges and legislators must be viewed as co-equal partners in the creation of “Australian” real property law.

Electronic conveyancing is here. But how will it evolve with the development of blockchains being touted as one means by which fraud in relation to land can be minimised, if not eliminated? With centralised land registries requiring expensive risk minimisation strategies such as a government-funded assurance fund, or the taking out of private title insurance, can blockchains provide a systemic level of security that can improve the land titles system, and lessen the need for other forms of risk minimisation? Advocates of blockchain technology are high on hyperbole with what it can offer to support smart transaction types in a number of fields. For others, blockchains have no great advantage when applied to physical assets such as real property, and are limited in their utility. This article seeks to advance the discussion, particularly in the context of land administration. Against a backdrop of fraud occurring in title by registration systems, the authors explain what blockchain technology is, before testing its validity by outlining four common fraud scenarios within land administration, and asking whether blockchain technology would have eliminated the frauds in question. The findings show that blockchains would have prevented the fraud in two of the scenarios, but not in the remaining two. In addition, the findings note some of the known unknowns that will need to be resolved prior to any enactment of a blockchain solution. The article’s conclusion is that where the process leading to registration is in some way unreliable, blockchains may offer some advantages. However, once the entry of the transaction is registered, blockchains can play no role in testing or checking the veracity of that entry. The authors also consider that, in the context of derivative interests in land, such as easements, mortgages and fee simples, blockchain technology is limited in capacity. Similarly, joint ownership of land is routine, yet the security nuances of blockchains may make joint ownership within a blockchain context difficult. These last two limitations restrict the current applicability of blockchains and make its application questionable for existing, soundly established land administration systems.

Fraudulent dealings in land have been increasing since the mid 90s. These frauds have largely occurred due to the failure of lending institutions to properly verify the identity of mortgagors. These failures resulted in a “moral hazard” for lenders – that is, lenders had no real incentive to ensure that the mortgagor was actually the registered proprietor of the land. To overcome this moral hazard, Queensland, Victoria and New South Wales have all adopted “verification of identity” provisions in their respective Torrens statutes. These provisions require a lender to take reasonable steps to verify the authority and identity of the proposed mortgagor to ensure that they are in fact the registered proprietor of the land. Where the failure to verify the identity of the mortgagor leads to a fraud being perpetrated, the lender may lose their registered mortgage interest. While the operation of these provisions seem simple; the opposite is true.

This article examines the provisions of Nigeria’s Land Use Act regarding compulsory acquisition and compensation process in Nigeria vis-à-vis global standards and best practices in the area. It highlights areas of injustice in the law, particularly instances of compulsory acquisitions without compensation. The article evaluates the Act as a piece of expropriatory legislation by pointing out particular instances of compulsory acquisition processes without compensation. The author advocates for a legislative review of the Act, particularly the overbearing regulatory and judicial powers of the Governor. The article also recommends the payment of compensation for revocation of property rights and access to courts for the determination of issues arising therefrom.

The Unit Titles Act 2010 (NZ) came into force in May 2011, replacing the Unit Titles Act 1972 (NZ). Since that time, there has been a combination of legislative amendment, proposals for reform, and judicial interpretation of the statute. This short article considers all three, with a focus on recent court decisions that have evaluated the Unit Titles Act 2010. These cases demonstrate the courts dealing with some basic questions around unit titles and body corporate issues, but also show that these simple questions can involve difficult answers.

Positive covenants imposed on existing landowners, even if registered, do not bind their successors in title unless the successor actually agrees to be bound. Many statutes seek to change this common law rule by providing that all covenants, in a particular agreement or approval, “bind successors in title”. Tighe v Pike highlights the continuing influence of this common law principle on the interpretation of statutes seeking to bind successors in title to existing obligations and the hidden risks for legislative drafters.

A never-ending story: Torrens title in South Australia and the 2015-2016 Amendments to the Real Property Act 1886 (SA) – Paul Babie

This note summarises modifications made to the Real Property Act 1886 (SA) by two recent amending Acts: the Real Property (Priority Notices and Other Measures) Amendment Act 2015 (SA) and the Real Property (Electronic Conveyancing) Amendment Act 2016 (SA). The former introduces Priority Notices both to protect the priority of a dealing prior to registration and to provide notice to a person searching the Register while the transaction is pending. The latter allows for most common conveyancing transactions and financial settlements to be effected through an electronic platform using a digital signature and abolishes Duplicate Certificates of Title. The note suggests that any increased risk of fraudulent transactions that may arise as a result of these amendments is offset by the introduction of Priority Notices, the Title Watch Service and new identity verification standards.

]]>Journal of Law and Medicine update: Vol 24 Pt 4http://sites.thomsonreuters.com.au/journals/2017/07/19/journal-of-law-and-medicine-update-vol-24-pt-4/
Wed, 19 Jul 2017 10:06:16 +0000http://sites.thomsonreuters.com.au/journals/?p=10138*Please note that the links to the content in this Part will direct you to Westlaw AU.

The obligation to abstain from doing harm to patients (non-maleficence) and the duty to engage in conduct which does good (beneficence) has a lengthy ethical history in medicine, dating back to the Hippocratic Corpus of writings. Generally, for a health practitioner to initiate litigation against a patient would be inconsistent with such precepts. However, the conduct of some patients constitutes a waiver in this regard. The circumstances surrounding the Supreme Court action in New South Wales of Al Muderis v Duncan (No 3) [2017] NSWSC 726 illustrate that such conduct by health practitioners may not only be ethically defensible but prudent in the modern online environment in which a very small subsection of patients are prepared to calumny their practitioners in the belief that they have impunity to publish their aggrievements to the world via the internet regardless of the harm that attaches to their publications.

A key goal of the National Disability Insurance Scheme is to increase the choice and control that people with disabilities have over the goods and services they purchase. However, research indicates a range of barriers to the participation of people with disabilities as consumers. These barriers can have an impact on individuals’ health and social and economic participation, especially when they affect access to basic and essential services such as utilities and telecommunications. There are particular challenges for consumers with cognitive or psychosocial disabilities who may experience decision-making impairment. This column explores these challenges and discusses options for providing support for people with decision-making impairments to participate in consumer transactions on an equal basis with others.

Novel Psychoactive Substances: The Challenges for Health Care, Analytical Science and the Law – Victoria Bicknell, Dimitri Gerostamoulos and David Ranson

Designer or synthetic drugs of abuse are a growing problem for legislators, law enforcement and health care providers. The rapidly modified chemical structure of such substances means that not only are their legislative categorisations uncertain and fluid but their health effects remain largely unclear with little opportunity for timely research that could be used to support patients with problems. For the forensic medical and scientific community the lack of validated drug standards for these newly emerged chemicals makes analysis problematic. The need for drug intelligence communication and drug surveillance systems has never been greater. The creation of, as well as wider access to, national and international data bases of new and emerging synthetic drugs would go some way to address the forensic analytical and health care problems that these substances create.

A new report on mental capacity and revisions to mental health law has highlighted the need to soften the hard-edged autonomy/rights framework of much legislation and its increasing encroachment into health law. Ethics allows us to introduce into this area moral perception and a sense of life as requiring sensitive attunement, awareness and responsiveness to the lives of others. That inflection of our reading of mental health law and provisions for impaired capacity and vulnerability makes the science of law a more natural science which takes nuanced account of the human predicament and its fragility in the face of ill-health in general and mental health in particular. Concepts such as supported and relational autonomy and the holding in being of individuals struggling to retain a sense of their own identity in a complex world of shifting relationships and power imbalances then becomes part of the pragmatic anthropological project in which our legislative interventions must aim to help and not hinder or disrupt our mutually interwoven journeys of self-formation and self-understanding.

Federal Labor, Green and Independent politicians have recently called for a blanket ban on sports-embedded gambling advertising (SEGA), and the Prime Minister has announced that such advertising would be banned during live sporting telecasts before 8.30pm. A considerable body of research establishes the adverse public health impacts of such gambling. The decision of the Australian High Court in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 paved the way, however, for an expansive online Australian sports-betting market for both interstate operators and internationally located gambling companies. The combination of widespread internet access and smart phone usage has resulted in an environment where placing a bet is more likely to occur in the home in front of children, hence the concern about its “normalisation”. Elite sports people have made public pronouncements that SEGA is now excessive, inconsistent with blanket prohibitions on gambling by elite sports people and damaging to public health. This column critically examines the regulatory landscape governing the advertisement, sponsorship and promotion of SEGA within Australian sport and why the current Bills on this topic do not go far enough.

Articles

This article examines disciplinary proceedings brought against complementary medicine (CM) practitioners in Australia at tribunal level since the inception of the Health Practitioner Regulation National Law. The article looks at all 32 such cases and identifies trends in the kinds of misconduct established, and the orders imposed. These findings are compared with earlier and more sizable studies of tribunal-level outcomes for disciplinary proceedings against doctors in Australia and New Zealand. While there are some clear comparisons – such as the gender ratio of respondent practitioners and the most common type of misconduct, ie sexual misconduct – there were also notable differences. Specifically, the rate of removal from practice, either by suspension or cancellation of registration, of CM practitioners was found to be significantly higher than that reported in earlier studies of cases against doctors. More research needs to be done to explore the reasons for this apparent disparity.

Allied to the growing demand for aged residential care services, with a shifting mix to higher levels of care for those with complex co-morbidities, is concern about the standard of care provided to those residing in such facilities. In the course of their work in aged residential care, nurses may face complaints about conduct or practice amounting to allegations of elder abuse or neglect. The ultimate step in the complaints process in New Zealand is a disciplinary charge laid before the Health Practitioners Disciplinary Tribunal (HPDT), a civil disciplinary body set up under the Health Practitioners Competence Assurance Act 2003 (NZ). This study examines the entire bank of published HPDT decisions from 2004 to 2014 relating to nurses’ misconduct in the aged residential care setting, and explores systemic issues in residential care that may contribute to elder neglect and abuse. By using a mixed-method approach to examine accumulative HPDT data, this research seeks to contribute to the educative and preventive value of professional discipline decisions concerning care for some of society’s most vulnerable members.

Clinical guidelines have proliferated in the last 20 years, with thousands created by a variety of groups for a variety of purposes. This proliferation has seen the legitimacy of some guidelines being called into question and has resulted in an increase of self-regulatory mechanisms (meta-guidelines) that aim to regulate the processes through which clinical guidelines are developed and hence to provide standards against which a user can measure the legitimacy of a guideline. However, clinical guidelines are also subject to forms of regulation by other actors, including the courts, and these actors have their own norms. This article examines the norms established by the courts concerning the legitimacy of clinical guidelines, and the factors considered when assessing the legitimacy of such guidelines, including expertise, consensus, consultation, evidence, bias and conflicts of interest, and compliance with relevant law.

This article seeks to encourage informed cross-disciplinary discourse about wastewater analysis (WWA) – a method of estimating substance use in very large populations via the analysis of samples of sewage water. It examines Australia’s policy platform for responding to substance use, the National Drug Strategy (NDS), and considers the evidence base underpinning it, particularly the metrics that are provided by national drug-monitoring systems. The article discusses the strengths of WWA and suggests the method could usefully augment existing monitoring systems. To demonstrate the flexibility, efficiency and scope of WWA, key findings are presented from the first national WWA study, which encapsulated sewage samples from approximately 40% of the Australian population. Opportunities for WWA to inform time-sensitive issues in particular communities are also explored. The article encourages health and criminal justice portfolios to engage with WWA to ensure it is put to best effect for policy purposes.

This article considers the legislative framework governing abortion in New South Wales and argues that the decriminalisation of abortion with no restrictions would more effectively support, recognise and facilitate the fulfilment of women’s and girls’ reproductive rights. It recommends mandating exclusion zones, placing a duty on medical practitioners to perform surgical terminations or to prescribe medical (chemical) abortions or refer a client to medical practitioners who will, and the establishment of accessible, culturally appropriate facilities for surgical abortions across urban and rural areas. It begins by evaluating two models of abortion legislation that have been introduced in Australia, the first created by the Abortion Law Reform Act 2000 (Vic) and the second created by amendments to the Health Act 1993 (ACT) in 2002. While both models are praiseworthy for striving to balance the interests of varying interest groups, this article argues neither model fully recognises the reproductive rights of women and girls. Both models create differing regimes of medicalisation in which medical practitioners are given paternalistic gatekeeping responsibilities in relation to women’s access to abortion. In these models and in the criminalisation model currently in place in New South Wales, women in marginalised communities such as Aboriginal and Torres Strait Islander women, immigrant women and those living in rural, remote and low socio-economic areas are further marginalised and afforded less access to abortion.

This article discusses the development of the law of property as applicable to stored semen through the lens of Roblin v Public Trustee (2015) 10 ACTLR 300, and considers broadly the future of this area of law and the authority for a possible new exception to the historic “no property in the human body” rule for tissue with a “significance beyond its mere existence”, such as semen. Roblin is the most recent case in a line of common law development affirming the principle that stored semen is property belonging to the originator, the rights to which may be passed to his spouse or domestic partner upon his death. The decision in Roblin is additionally reflective of the development of a “commonsense” approach to recognising property in stored tissue of special significance, which seeks to avoid the legal fiction that would be created in denying property to significant tissue which has a clear physical presence.

In Australia each year intersex children undergo invasive, identity-affecting, life-changing medical procedures. While some of these procedures are essential to save the child’s life, most are simply to ensure that the intersex child’s genitals are philologically either male or female. This article argues that this practice is wrong for the following reasons: these procedures should be recognised as Special Medical Procedures that require the oversight of the Family Court; psycho-social motivation, based on a binary conception of sex, is outdated and discriminatory; and the Family Court does not approve this sort of invasive surgery when asked to do so for transgender teens. Medical practitioners who perform these operations on intersex children expose themselves to criminal and civil liability. The best approach is to leave intersex children’s bodies alone and allow them to make decisions about their sexual morphology when they attain competence.

Embryo cryopreservation is frequently characterised as providing in vitro fertilisation (IVF) patients with a reassuring fertility insurance benefit. However, this description fails to encompass the field of dreams that frozen embryo storage and retention creates for many infertile couples and individuals. This article uses qualitative interview data collected in 2013 from 45 Canadian fertility treatment patients to explore how these women and men negotiated liminal spatial and temporal reproductive boundaries as they made decisions about their stored embryos. It sheds light on the investments made by patients in “hope technologies”, examines the destabilisation and category mixing that fertility preservation can generate, and investigates the liminal places in which patients and their stored embryos dwell and experience time. Canada imposes no embryo storage retention time limits. This article argues that to do so confuses notions of embryo storage time with that of reproductive purpose and would lead to further ambiguity and liminality.

Community treatment orders (CTOs) emerged in the 1970s as an innovative, “less restrictive” alternative to involuntary inpatient orders for people with chronic and severe mental illness. Now, after three decades of practice, numerous studies have concluded that CTOs do not achieve their main clinical aims, while involuntary orders in mental health continue to be strongly criticised in light of the requirements of the Convention on the Rights of Persons with Disabilities. The question now arises whether CTOs are still a justifiable option for treatment. This article reviews the history and features of community treatment orders in Australia and New Zealand, concluding that the CTO system was based on goals that were both normatively and epistemically flawed. In light of these facts, the article argues that CTOs can no longer be justified if the goals of non-discrimination and supported decision-making enshrined in the Convention are to be taken seriously by states parties.

The Red Cross’ donor selection policy dictates that a man cannot donate blood if he has had sex with another man in the preceding 12 months. This policy is entrenched by legislation at the State, Territory and federal level. This article argues that the policy reproduces a homophobic discourse that was borne out of the “AIDS crisis” and instils a negative self-conception within homosexual subjects themselves. It examines whether the policy is supported by the scientific evidence and the exact way in which the policy is mandated by the law. A queer theory framework is used to critically interpret these findings. As an alternative, this article advocates for a gender and sexuality neutral selection policy based on the risk of certain sexual behaviours. This is supported by the experience of foreign jurisdictions that have implemented similar policies. Such a reform would include homosexual men in an important field of social participation and help reverse the negative perception of homosexuality to which the current policy contributes.

This article considers developments in the law regarding homosexuality through the prism of stigma, which retains an important role in psychology theory. It explores the role of law in perpetuating, or tackling, stigma. While the decriminalisation of homosexual practice between consenting adults has been important in reducing the stigma attached to homosexual activity, it is evident that stigma, and its associated serious psychological effects, persists in relation to sexuality. The recent High Court of Australia decision permitting a “homosexual advance defence” to be used by an offender accused of murdering the person making the unwanted advance is argued to reflect and perpetuate the continued stigmatisation of homosexual practice. There is reason to doubt whether the High Court would view an unwanted heterosexual advance in the same way as it apparently views an unwanted homosexual advance. The law must be careful in apparently excusing, or partly excusing, extremely violent (sometimes deadly) behaviour, and the message it sends when it does so.

Since 2009, when the Italian Parliament first discussed Bill 2350 regarding advance directives, Italy has become increasingly enthusiastic about passing legislation where the ethical principle of autonomy and the legal norms needed to safeguard it are recognised. After giving arguments for the importance of a legal proxy (surrogate or guardian) in end-of-life decisions, this article offers a critical analysis of the legal situation in Italy by taking into consideration the Mental Capacity Act 2005 (UK). Moreover, the jurisprudential interpretation of amended Arts 404-413 of the Italian Civil Code – which introduced to Italy the legal role of guardian (amministratore di sostegno) – are examined.

]]>Building and Construction Law Journal update: Vol 33 Pt 2http://sites.thomsonreuters.com.au/journals/2017/07/14/building-and-construction-law-journal-update-vol-33-pt-2/
Fri, 14 Jul 2017 07:20:19 +0000http://sites.thomsonreuters.com.au/journals/?p=10132*Please note that the links to the content in this Part will direct you to Westlaw AU.

Articles

Turning the traditional concepts of construction contracting on their head, alliancing seeks to harness the synergistic benefits of co-operation and collaboration between the project participants. Research suggests that alliancing can work, at least in a commercial sense, delivering improved time and cost outcomes. However, it comes with increased risk for the owner of a project in the event that the project encounters unforeseen difficulties or the efficiencies promised by co-operation and collaboration do not materialise. Whether, from an owner’s point of view, the increase in risk is justified – having regard to the potential advantages of enhanced co-operation and collaboration – is a difficult commercial question, which depends upon the type of project, the alternative contracting model, the previous relationship of the parties and the personalities of key management.

The author discusses the development of global claims since the important Scottish decision in John Doyle over 12 years ago, in the context of two recent Australian decisions where global claims failed. The focus of the author’s attention is the concept of the total time/cost claim as developed in the US Court of Claims and, in particular, the possibility of apportionment of loss caused by concurrent events. The author’s main thesis is that the reliance in John Doyle on US authorities to develop the apportionment concept to apply to losses caused by concurrent events, as later developed in City Inn, was premised on a false logic

]]>Environmental and Planning Law Journal update: Vol 34 Pt 4http://sites.thomsonreuters.com.au/journals/2017/07/14/environmental-and-planning-law-journal-update-vol-34-pt-4/
Fri, 14 Jul 2017 07:04:58 +0000http://sites.thomsonreuters.com.au/journals/?p=10128*Please note that the links to the content in this Part will direct you to Westlaw AU.

Articles

Despite large financial investments by governments and farmers, as well as significant inputs of time, effort and goodwill, the ecological, social and productive capacity of the Australian rural environment is under threat. The nature of environmental problems, the limited capacity of rural communities and government constraints pose immense challenges of governance. Traditional governance measures (ie those centred on public laws) and purely private and self-regulatory forms seem unable to meet these challenges. This has spurred interest in collaborative modes, with the hope of combining the best of both the public and private spheres. Collaborative experiments are already underway in rural Australia, but there is a need for more empirical examination of how such arrangements work in practice. The great hopes attached to the success of collaborative governance are mostly theoretical or based on applications that may not be relevant to rural natural resources in Australia.

In the 1990s, Gunningham and others argued in favour of “smart” regulation as an alternative to command-and-control systems. As such, over the last three decades non-government organisations have entered the regulatory arena. A particularly successful contribution has been the initiation of public interest litigation (PIL), commenced under the auspices of the New South Wales Environmental Defenders Office (NSW EDO). Although smart regulation has been used to appraise the agricultural product sector and pollution, it has not been used to appraise planning and development regimes. This article evaluates the growth of PIL, focussing on the role of the NSW EDO. Initially, government acted in conformity with principles of smart regulation. However, as PIL became successful it challenged government in unexpected ways, leading to the introduction of conflicting policies and instruments that are inconsistent with smart regulatory frameworks. The resulting imbalance diminishes the viability of PIL and undermines one of the greater success stories of the environmental movement in Australia – and is arguably “unsmart” regulation.

Through the lens of the current controversy surrounding the impact of a proposed dam on the Cliefden Caves in central-western New South Wales, this article highlights the need for environmental law and policy (and environmental lawyers) to pay greater attention to abiotic nature conservation and the protection of geoheritage in particular. It argues that existing environmental law in New South Wales provides inadequate protection for the State’s geoheritage, and in particular for the unique geoheritage of the Cliefden Caves and associated fossil deposits of international significance. This is contrasted with the Tasmanian experience, which highlights how greater protection of geoheritage can be achieved through a combination of legislation and effective, well-resourced policy implementation.

Following Jacob v Save Beeliar Wetlands (Inc), environmental impact assessment (EIA) policy developed by the Environmental Protection Authority (EPA) of Western Australia has the status of a permissive relevant consideration. This decision has created an anomaly regarding the status of EIA policy. The EPA extensively develops and reviews its policy, and represents that it will use it in assessing proposals. Three case studies of liquefied natural gas proposals illustrate this fact to varying degrees. To ensure certainty of process, consistency and good decision-making in EIA, this anomaly must be resolved. The suggested view, supported by both legal and administrative reasons, is that EIA policy applicable to a proposal has the status of a mandatory relevant consideration. Potential solutions to the anomaly include amendments to the Environmental Protection Act 1986 (WA). This article adds to the body of research concerning lawful and good administrative decision-making in the context of environmental regulation.

The Paris Agreement encourages parties to enhance action to reduce forestry emissions. By reference to the experience of Australia and Indonesia, this article reveals significant challenges to reducing emissions from deforestation after the Paris Agreement. It evaluates the legal frameworks for regulating forest clearing in Australia and Indonesia, exposing several key barriers to their efficacy, and contends that, in order to reduce emissions from deforestation, regulatory clearing controls must be supported by payments to promote ongoing forest management. It is suggested that the delivery of such payments could be facilitated by legal frameworks that assign property rights to carbon.